EveryBody's Guide to the Law

amendment did not prohibit the death penalty in limited cases, exclusively in murder cases
where there are aggravating circumstances. The U.S. Supreme Court noted that the death
penalty was allowed in these cases because (1) it was considered permissible by the framers of
the Constitution and the Bill of Rights (the first ten amendments to the Constitution), and
(2) the death penalty might serve two principal social purposes: retribution and deterrence.
The death penalty is permissible only in murder cases, but not every murder qualifies as a
death penalty case. It must be murder in the first degree with aggravating, or “special,” circumstances.
Special circumstances justifying the imposition of the death penalty include:
❉ multiple murders in the proceedings for which the defendant is being tried;
❉ the murder was committed for the purpose of avoiding or preventing a lawful arrest or
while attempting to escape from lawful custody;
❉ killings by means of a destructive device, bomb, or explosive that the defendant mailed
or delivered in person;
❉ the victim was a peace officer or firefighter acting within the course of his or her duties
and this fact was known to the defendant;
❉ the victim was a witness to a crime, a prosecutor or former prosecutor, judge or former
judge, jury member or former jury member, and the murder was committed in retaliation
for, or to prevent the performance of, the victim’s official duties;
❉ the murder was committed by ambush (“lying in wait”);
❉ the victim was killed deliberately because of his or her race, color, religion, nationality,
country of origin, or sexual orientation (a hate crime);
❉ the murder was committed while the defendant was engaged in the commission of a
designated felony, such as a robbery, kidnapping, rape, sodomy, the performance of a
lewd or lascivious act upon a child under a certain age (such as 14 years), oral copulation,
burglary, arson, mayhem, rape, carjacking, or train wrecking;
❉ the murder was intentional and involved the use of torture;
❉ the murder was committed by poison;
❉ the murder was deliberate and involved the shooting of a gun or other firearm from a
motor vehicle at another person outside the vehicle with the intent to inflict death; or
❉ murders by an active participant in a criminal street gang, and the murder was carried
out to further the activities of the gang.
Cruelty and the Death Penalty
In capital murder cases, “cruel” implies “something inhuman and barbarous, something more
than the mere extinguishment of life.” The eighth amendment bars the infliction of unnecessary
pain in the execution of the death sentence. Punishments are deemed cruel when they
involve torture or a lingering death.
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